People v. Batista

• Decision Date: 23 September 1985
• Citation: 113 A.D.2d 890,493 N.Y.S.2d 608
• Parties: The PEOPLE, etc., Respondent, v. Francisco BATISTA, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 608

493 N.Y.S.2d 608

113 A.D.2d 890

The PEOPLE, etc., Respondent, v. Francisco BATISTA, Appellant.

Supreme Court, Appellate Division,

Second Department.

Sept. 23, 1985.

Philip L. Weinstein, New York City (Elaine Unkeless of counsel), for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Michael Gore and James Rooney of counsel), for respondent.

Before BRACKEN, J.P., and O'CONNOR, RUBIN and LAWRENCE, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered April 5, 1982, convicting him of robbery in the second degree and petit larceny, upon a jury verdict, and imposing sentence.

Judgment modified, on the law, by vacating defendant's conviction of petit larceny and the sentence imposed thereon. As so modified, judgment affirmed.

As the District Attorney concedes, the verdict convicting defendant of both robbery in the second degree and petit larceny is improper. Under the facts of this case, petit larceny was an "inclusory concurrent count" (CPL 300.30, [4] ) and, therefore, a verdict of guilty upon the greater count of robbery in the second degree is deemed a dismissal of every lesser count (CPL 300.40[3][b]; People v. Grier, 37 N.Y.2d 847, 378 N.Y.S.2d 37, 340 N.E.2d 471).

Defendant also contends that he was deprived of a fair trial because of certain rulings which limited his cross-examination of a key prosecution witness, the victim of the alleged robbery. Prior to the trial, the People moved to preclude cross-examination of the complainant regarding a prior charge of possession of marijuana which had been adjourned in contemplation of dismissal. Criminal Term granted the motion, holding that defendant's right to cross-examine the witness as to the prior illegal act, for the purpose of impeaching the witness' credibility, was outweighed by the witness' right to be protected from undue humiliation and embarrassment (see, People v. Batista, 115 Misc.2d 1048, 454 N.Y.S.2d 1009). During the trial, the witness (a native of England) was asked on cross-examination whether he had a green card; the witness replied that he was not carrying it with him. The court would not permit defense counsel, however, to inquire whether the witness understood his legal obligation to have the card in his possession at all times. Defense counsel also asked whether the witness ran a numbers operation from the store in which he worked; the witness denied that he did so, and the court precluded further inquiry on the subject.

It is, of course, well settled that the permissible scope of cross-examination is a matter subject to the sound discretion of the trial court (People v. Schwartzman, 24 N.Y.2d 241, 244, 299 N.Y.S.2d 817, 247 N.E.2d 642, cert. denied 396 U.S. 846, 90 S.Ct. 103, 24 L.Ed.2d 96). However, the considerations which may limit cross-examination of a defendant-witness (see, People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413) simply do not apply to a witness who is not a defendant (People v. Allen, 67 A.D.2d 558, 416 N.Y.S.2d 49, affd. 50 N.Y.2d 898, 430 N.Y.S.2d 588, 408 N.E.2d 917; People v. Ocasio, 47 N.Y.2d 55, 416 N.Y.S.2d 581, 389 N.E.2d 1101), and cross-examination of such a witness should therefore be permitted with respect to any immoral, vicious or criminal act committed by him which may reflect upon his character and show him to be unworthy of belief (People v. Sorge, 301 N.Y. 198, 200, 93 N.E.2d 637; People v. Allen, supra, 67 A.D.2d, at p. 560, 416 N.Y.S.2d 49; People v. Ayrhart, 101 A.D.2d 703, 475 N.Y.S.2d 687; People v. Meurer, 86 A.D.2d 636, 446 N.Y.S.2d 341, Richardson, Evidence, § 498 [Prince, 10th ed] ). The trial court erred by applying Sandoval principles, and determining that the witness' interest in freedom from the embarrassment attendant upon disclosure of the prior marijuana charge was paramount to the constitutionally guaranteed right of the accused to cross-examine (Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934). For the same reason, the court should have afforded greater latitude to defense counsel in examining the witness regarding his failure to carry a green card and his participation in illegal gambling activities. In particular, although a cross-examiner is generally bound by the witness' answers regarding collateral matters and may not offer extrinsic proof thereof (see, People v. Wise, 46 N.Y.2d 321, 328, 413 N.Y.S.2d 334, 385 N.E.2d 1262), the examiner may question the witness further in the hope that the witness will change his answers (People v. Sorge, supra, 301 N.Y., at pp. 200-201, 93 N.E.2d 637; Richardson, Evidence, § 491 [Prince, 10th ed] ). Thus, the mere denial by the witness that he had run a numbers operation from his store did not constitute an absolute bar to further good-faith questioning regarding his gambling activities.

However, not every error which improperly curtails the right of the accused to cross-examine a prosecution witness is per se reversible error (People v. Allen, 67 A.D.2d 558, 560, 416...